JR - Illegality Flashcards
What 2 things did CCSU / GCHQ (1985) establish?
1) Decisions under the royal prerogative can be judicially reviewed.
2) Lord Diplock codified the common law grounds of judicial review.
AG v Fulham Corporation (1921) relates to which sub-ground of judicial review (illegality)?
Simple ultra vires
Errors of law occur where…
The authority has not properly understood the legal powers conferred on it.
Anisminic
House of Lords held there had been an error of law as the Financial Conduct Authority had misunderstood the statutory requirements of the scheme.
Why are courts less willing to interfere in errors of fact?
As courts do not wish to undermine the powers granted to the public authority by Parliament.
Case on errors of fact
Khawaja
Khawaja
Immigration Officer’s belief that C was an illegal immigrant was insufficient: there must be evidence to show that factual circumstances are in place.
E v SSHD: 4 requirements for an error of fact?
1) Mistake of existing fact, including mistakes as to the availability of evidence on a matter.
2) Fact / evidence must be established so it was uncontentious and objectively verifiable.
3) Appellant must not be responsible for the mistake.
4) The mistake must have played a material (but not necessarily decisive part) in the tribunal’s reasoning.
What are the 4 subdivisions of discretion?
1) Improper purpose
2) Relevant / irrelevant considerations
3) Fettering discretion
4) Wrongful delegation
2 key cases on improper purpose
Padfield v Minister for Agriculture (1968)
Porter v Magill (2001)
Padfield v Minister for Agriculture
The purpose of a power was the creation of a complaints panel. Exercise of this power to instead remove all ability to hear complaints was exercising this power for an improper purpose.
Porter v Magill (2001)
Use of a public power to gain an electoral advantage was held to be improper purpose: was not the power’s purpose.
Wheeler v Leicester City Council (1985)
Local Council banning rugby team from the local grounds due to their tour of South Africa during apartheid was an irrelevant consideration: was not part of their powers.
Ex parte Venables & Thompson (1997)
Home Secretary setting sentencing tariff based on public newspaper petition was an irrelevant consideration.
R (DSD and NBV) v Radford (2018)
WORBOYS CASE
Parole Board’s decision to grant Worboys parole despite not investigating a further 80+ alleged offences was irrational - it failed to take into account the RELEVANT consideration of his other alleged offences.
Case demonstrating the potential overlaps between improper purpose and irrelevant considerations
R (Somerset City Council) v Fewings (1995)
2 key cases on fettering discretion
Ex parte Kynoch
British Oxygen v Minister for Technology
Fettering discretion occurs where…
A public bodies must NOT apply a policy or guideline so rigidly that this prevents proper consideration of the case’s merits.
Lancashire Health Authority v ADG establishes…
Legal discretion must not be fettered by following policy guidance too rigidly.
Ex parte Kynock
Court held public bodies must not ‘close ears’ to different applications: must not reject solely on the basis of a blanket application of policy.
Claims must be given some consideration.
British Oxygen Co Ltd v Minister for Technology
Authorities must not refuse to listen due to rigid policy: they must still consider cases on the margins of the policy.
Statutory provision containing the public sector equality duty.
s.149 Equality Act 2010
R (MA) v Secretary of State for Work and Pensions establishes what about the public sector equality duty?
Judge?
Laws LJ: it is not a duty to achieve a particular result, but just to have ‘due regard’ to furthering equality / eradicating discrimination.
Brackling v Secretary of State for Work and Pensions
Public authority must show evidence of engagement with the public sector equality duty when making a decision to satisfy the ‘due regard’ duty.
